Friday, March 03, 2017

US v. Vazquez-Hernandez, No. 15-10009
(3-3-17)(Sessions, D.J., w/Gould & Berzon). The 9th finds plain error in a
jury instruction, and then enters a judgment of acquittal for attempted illegal
entry.

The defendant makes a
living washing car windows at the Mariposa POE in Nogales. He has had prior
illegal entries, but for the past several years, morning, noon, and night, day
after day, he plies his trade as the cars line up.The configuration of the POE is such that
Border Patrol allows such tradespeople, including those selling wares, to enter
into a pre-inspection area, which is US territory.As the 9th observes, there are hundreds of
cameras and many armed agents.

Periodically, the
Border Patrol sweeps the area, and clears out the people, who flee back to
Mexico. In this particular sweep, he was nabbed. In this instance, according to the vigilant
Border Patrol, the defendant had been looking longingly to the US, seemed
unusually attentive, and had appeared to want to reentry.

Charged with
attempted illegal reentry, the defendant argued that he was under
"official restraint" when he came to the pre-inspection area.He and others always fled back to
Mexico.The government therefore failed
to show that he intended to remain in the United States.The court's instruction did not contain this
crucial element--the intent to remain-- important here given the facts, and the
specific intent requirement of attempted illegal reentry together with official
restraint.The jury asked a question
that displayed confusion on this very point.The failure of the court thus to so instruct was plain error.

As for the judgment
of acquittal, the defendant was nabbed in the pre-inspection area, where he was
observed.He previously fled back to
Mexico when the sweeps came.The
government's evidence that the defendant intended to go northward, and remain
in the US, was exceedingly weak.The 9th
concludes that no rational trier of fact could find the defendant guilty beyond
a reasonable doubt.